FAIR HOUSING FOR PEOPLE WITH DISABILITIES. Tracey McCartney, Tennessee Fair Housing Council

Transcription

1 FAIR HOUSING FOR PEOPLE WITH DISABILITIES Tracey McCartney, Tennessee Fair Housing Council

2 The work that provided the basis for this publication was supported by funding under a grant with the U.S. Department of Housing and Urban Development. The substance and findings of the work are dedicated to the public. The author and publisher are solely responsible for the accuracy of the statements and interpretations contained in this publication. Such interpretations do not necessarily reflect the views of the Federal Government.

3 GENERAL OVERVIEW OF FAIR HOUSING ACT

4 DWELLING The Fair Housing Act only covers dwellings Dwellings are places where someone lives, even if it might not be permanent Dwellings include shelters and other housing arrangements, even if the resident is not paying rent Dwellings can include vacant land if it is to be used for construction of a dwelling

5 TIMELINE OF ADDITION OF PROTECTED CLASSES 1968 Race Color 1974 Sex Religion National Origin 1988 Familial Status Disability ( handicap ) 5

6 MARKETS COVERED Rental Sales Lending Insurance Advertising Land use (zoning, codes, etc.) All areas connected with residential housing

7 WHAT ARE THE (RELEVANT) PROHIBITIONS? Refusing to sell or rent after the making of a bona fide offer, or otherwise making unavailable or denying housing (42 USC 3604(a)) Discriminating in the terms, conditions, and privileges of sale or of rental (3604(b)) Making, printing, or publishing a discriminatory statement (3604(c)) Lying about availability (3604(d)) Blockbusting (3604(e)) Harassing, intimidating, coercing someone on account of membership in a protected class (includes retaliation for pursuing, or helping another pursue, their fair housing rights) (3617)

8 ADDITIONAL PROVISIONS FOR DISABILITY Failure to make a reasonable accommodation Failure to allow reasonable modifications Failure to design and/or construct with basic wheelchair accessibility/adaptability

9 DISPARATE TREATMENT V. DISPARATE IMPACT Disparate treatment occurs when a party intentionally discriminates against another party through an action, a stated or unstated policy (steering families with children to a particular building) or inaction Disparate impact describes the illegal effects of a facially neutral policy that has a significantly greater discriminatory impact on members of a protected class. Proof of intent is not required. Examples: Restricting rentals to people who work full time. Allowing only one person per bedroom.

10 DISABILITY

11 HANDICAP DEFINED The Fair Housing Act uses the word handicap, but we will use disability, which has more acceptance currently. Definition: A physical or mental impairment which substantially limits one or more of a person s major life activities; A record of having such an impairment; or Being regarded as having such an impairment

12 ADDICTION AS A DISABILITY Addiction to alcohol is considered a disability. Addiction to drugs IN THE PAST is considered a disability. Addiction caused by the current, illegal use of a controlled substance is NOT considered a disability.

13 WHAT IS A MAJOR LIFE ACTIVITY? Major life activities include but are not limited to: Caring for one s self Performing manual tasks Walking Seeing Hearing Speaking Breathing Learning Working 13

14 EXAMPLES OF PERSONS CONSIDERED TO HAVE DISABILITIES People with Alzheimer s Syndrome People with senile dementia and organic brain syndrome People limited by intellectual disabilities Elderly people with chronic illnesses People with schizophrenia People diagnosed with HIV infection or other infectious diseases People who are mobility impaired 14

15 WHAT S REQUIRED? Prohibition against traditional forms of discrimination the same things that are illegal on the basis of one of the other 6 protected classes Housing providers are required to make reasonable accommodations Housing providers are required to allow reasonable modifications Certain newly constructed multifamily housing must be designed and constructed in a way that allows basic wheelchair access in units and common areas

16 CONDUCT PROHIBITED BY 42 U.S.C. 3604(F)(1) It is unlawful - - To discriminate in the sale or rental, or otherwise make unavailable or deny, a dwelling to a buyer or renter because of a handicap of - - that buyer or renter, a person residing in or intending to reside in that dwelling after it is sold, rented or made available; or any person associated with that buyer or renter. 16

17 CONDUCT PROHIBITED BY 42 U.S.C. 3604(F)(1) Examples: A refusal to rent to a person because the individual has AIDS. A refusal to rent to an individual because he/she has a mental illness and is assumed to be unable to comply with the lease. 17

18 CONDUCT PROHIBITED BY 42 U.S.C. 3604(F)(2) It is unlawful - - To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of that person, a person residing in or intending to reside in that dwelling after it is sold, rented or made available; or any person associated with that buyer or renter. 18

19 DISABILITY TERMS/CONDITIONS HUD v. Country Manor Apartments, Fair Housing-Fair Lending Rptr. 25,156, 26,248 (HUD ALJ 2001) An apartment complex for seniors instituted a rule requiring all users of electric/motorized wheelchairs and scooters to obtain liability insurance coverage. There had been no accidents involving wheelchairs or scooters to that point, but some residents were concerned. The HUD ALJ held that the insurance requirement imposed an illegal condition on some people on account of their disability. (cont d) 19

20 DISABILITY TERMS/CONDITIONS HUD v. Country Manor Apartments (cont d) Fun fact: Two years after the insurance purchase requirement was imposed, an accident involving a motorized wheelchair did occur at Country Manor. The accident occurred because the operator of the motorized wheelchair used his horn to warn the pedestrians ahead of him. The noise startled one of the pedestrians, who stumbled into another pedestrian, causing them both to fall. The second pedestrian suffered a broken leg that necessitated several months' treatment in a nursing home and subsequent occasional use of a wheelchair. The wheelchair did not actually come in contact with either pedestrian.

21 NO ONE AT COUNTRY MANOR HAD THIS.

22 DISABILITY TERMS AND CONDITIONS National Fair Housing Alliance v. Bell Partners (FHEO No ) Complainants alleged that respondents discriminated on the basis of disability against hearing-impaired prospective applicants for housing by denying them equal access to information and failing to encourage hearing impaired prospective applicants to apply for housing. Under the settlement, respondents agreed to adopt new policies addressing equal access and opportunities for applicants and tenants with disabilities. Respondents also agreed to pay complainant and testers $150,000 in damages and to pay complainants attorney s fees.

23 CONDUCT PROHIBITED BY 42 U.S.C. 3604(F)(3)(B) Discrimination includes: a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling 23

24 REASONABLE ACCOMMODATIONS Examples of prohibited conduct: Refusal to permit a mobility impaired person a designated parking place near their entry when such is necessary due to his/her disability. With a no pets policy, refusal to permit an assistance animal to reside with a person with a mental illness when the animal is necessary to the person s mental well-being. With a no pets policy, refusal to permit an assistance animal to reside with a person with a physical disability when the animal is necessary to assist the person with such activities as picking up items that have fallen on the floor. Charging a pet deposit to a person with a sight impairment to have a seeing eye dog reside with him/her. 24

25 REASONABLE ACCOMMODATIONS An accommodation request must show... The person has a disability. The accommodation is necessary (it will enhance the person s enjoyment of the dwelling by ameliorating the manifestations of the person s disability) The accommodation is reasonable in that: It will not require a fundamental alteration in the nature of the program, and It will not pose an undue financial or administrative burden. 25

26 REASONABLE ACCOMMODATIONS A resident or applicant is not entitled to a reasonable accommodation unless he or she requests one. The request does not have to be in a particular form it just needs to put the provider on notice. Obviously, it is best for all parties if the request is in writing Undue delay in granting an accommodation is deemed a denial 26

27 REASONABLE ACCOMMODATIONS - DOCUMENTATION Housing providers can ask for documentation of: The existence of a disability, and A description of the needed accommodation, and An explanation of the nexus between the disability and the requested accommodation. If the disability and the need are obvious, asking for documentation is not appropriate Documentation can come from a wide variety of sources: A doctor or other medical professional, a peer support group, a non-medical service agency, or a reliable third party 27

28 REASONABLE ACCOMMODATIONS - INTERACTIVE PROCESS When the housing provider rejects a request as unreasonable, he should discuss alternatives with the tenant A housing provider should not propose alternative accommodations if the requested one is reasonable 28

29 DISABILITY REFUSAL TO MAKE A REASONABLE ACCOMMODATION Harbor Cove Homeowners Association, and HAE Investments Ltd., FHEO No (Sept. 30, 2013) A family with a disabled son filed a complaint with HUD, alleging that the Harbor Cove Homeowners Association, First Columbia Management Inc., and HAE LTD discriminated against them by refusing to allow the family to park an ambulance in their driveway. The family had provided a letter to the respondents documenting its need for the ambulance to transport their son, who can only travel in a prone position. Under the terms of a conciliation agreement, the respondents will pay the family $65,000 and will establish a reasonable accommodation policy.

30 DISABILITY REFUSAL TO MAKE A REASONABLE ACCOMMODATION HUD v. Brentwood Manor Apartments, No. 13-AF-0176-FH-017 The owners and managers of the Brentwood Manor Apartments in Kansas City, Missouri, will pay a tenant with disabilities $20,000 to settle a disability discrimination complaint. The tenant alleged that the landlord refused to allow her sister to live with her in her apartment as a reasonable accommodation for her disability. Brentwood Manor had a policy prohibiting a tenant from adding a person to a lease for the first six months of her tenancy. It refused to waive this policy even though the tenant provided documentation from her doctor stating that she needed someone to live with her to assist with her care. As a result, the woman was forced to move out of the apartment. The complex must also develop a reasonable accommodation policy and send employees to fair housing training.

31 REASONABLE ACCOMMODATIONS - ASSISTANCE ANIMALS Under the Fair Housing Act, all kinds of animals can assist people with disabilities in their housing guide dogs, large dogs that help people walk, cats that provide companionship, etc. The animal does not need to be specially trained or certified as an assistance animal, but the tenant must still be able to demonstrate that the animal is necessary and can perform the function the tenant requires. Housing providers can require that the animal be well-behaved, vaccinated, and cleaned up after. It is not appropriate for a housing provider to require a pet deposit for an assistance animal. Breed, size, and weight limitations may not be applied to assistance animals. Instead, housing providers must make individualized assessments about each animal s actual conduct.

32 DISABILITY REFUSAL TO MAKE A REASONABLE ACCOMMODATION Silver State Fair Housing Council, Inc. v. Rosewood Park, LLC, No. 3:12-cv MMD- VPC (D. Nev. Oct. 28, 2013) Private plaintiffs and the Department of Justice alleged that the defendants engaged in discriminatory conduct that included limiting tenants with assistance animals to one section of the complex; subjecting tenants with assistance animals to pet fees; requiring assistance animals to be licensed or certified; and banning companion or uncertified service dogs. Owners of complex agreed to pay a total of $167,000, including $125,000 to a family that was not allowed to move in because of their assistance animal. Complex also agreed to get training and change its policies.

33 DISABILITY REFUSAL TO MAKE A REASONABLE ACCOMMODATION Book v. Hunter, Case No. 1:12-cv CL (D. Or. 2013) After the landlord agreed to rent an apartment to Book and arrangements were made to pay a security deposit and get keys, Book provided a doctor s note stating her need for an emotional support dog. Landlord then rejected Book s application and wrote Denial Due to Pet and Svc Dog on the application. Judge found that the landlord failed to make a reasonable accommodation and awarded Book $12,000 in damages as well as attorney s fees and costs. 33

34 REASONABLE ACCOMMODATION SCENARIO Scenario: Herschel has a mobility impairment (he is a recent amputee) and also is an alcoholic. He pays his rent on time and complies with the lease, but he also drinks a lot. Phillip, his landlord, occasionally does repair work in Herschel s unit and is offended that Herschel usually reeks of alcohol, but Herschel is otherwise a good tenant. Phillip decides to terminate Herschel s lease because of the heavy drinking, which Phillip finds objectionable because of his religious beliefs and because he believes alcoholism is a sign of weak character. Did Phillip do the right thing, and why? A.Yes B. No

35 REASONABLE ACCOMMODATION SCENARIO Amy lives in an apartment complex in Franklin and sends a handwritten note to the manager. The letter says: Been having trouble lately. A few weeks ago I started falling a lot and my left arm doesn t work too good. Hospital says I had a stroke and I might need to go in a nursing home if I can t get some help. Dr. definitely doesn t want me to cook or bathe on my own. My daughter can move up from Tennessee and help me, but we can t both live in this one-bedroom apartment. She has a child. NEED HELP PLEASE don t know what to do. What should the manager do? A. Send Amy a letter reminding her that the lease has language requiring that each tenant be able to live independently B. Have Amy fill out your medical accommodation form, which asks for details about Amy s condition so that you can best determine how to help her C. Invite Amy in to discuss her options for getting her daughter to move in

36 REASONABLE ACCOMMODATION SCENARIO Lori has developed bone cancer, and it has made it impossible for her to climb the stairs to her second-floor apartment. She is 4 months into a 12-month lease. She has requested several times that the landlord transfer her to a downstairs apartment. He has either ignored her requests or told her nothing is available. She has now asked to break her lease early so that she can move to a more accessible community. The complex will allow tenants to break a lease early by giving 60 days notice and paying an extra month s rent and forfeiting the security deposit as a penalty. What is the right call in this case? A. Applying the complex early termination policy to Lori, because it s a violation of the Fair Housing Act to single someone out for special treatment. B. Allowing Lori to move out with reasonable notice without penalty. C. Continuing to ignore her requests.

37 EXCEPTIONS UNDER THE ACT: DIRECT THREAT To health and safety of others Result in substantial physical damage to property of others. Cannot be utilized by a housing provider to presume that a person with a disability in general will pose a greater threat to health and safety of others than persons without disabilities. NOTE: Housing providers often assume that people with mental illness are dangerous based on their behavior. Selected cases regarding direct threat: Roe v. Sugar Mills Associates, 820 F.Supp. 636 (D.N.H. 1993) Roe v. Housing Authority of City of Boulder, 909 F.Supp. 814 (D. Col. 1995) 37

38 REASONABLE ACCOMMODATION SCENARIO Ed has a mental illness. As a symptom of his mental illness, he has started hoarding old magazines, blocking the rear door and windows of his unit. The management company has warned him about the hoarding, accusing him of serious and repeated violations of lease and of creating a fire hazard. Maggie, Ed s case manager from the Mental Health Co-Op, contacts the manager and advises them that she is attempting to help him, partly by offering him help cleaning the apartment, additional counseling and new medication. What should the management do? A.Send Ed an eviction notice, because his conduct is a direct threat. B. Give Ed more time to clean up without issuing more notices. C.Ask the case manager what Ed s diagnosis is and consult its own psychiatric expert for advice

39 CONDUCT PROHIBITED BY 42 U.S.C. 3604(F)(3)(A) Discrimination includes: a refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises 39

40 REASONABLE MODIFICATIONS: SECTION 504 In housing that receives federal financial assistance, the housing provider bears the financial responsibility for modification unless it s an undue burden. If the modification is an undue burden, the provider can move the tenant to an accessible unit. 40

41 CONDUCT PROHIBITED BY 42 U.S.C. 3604(F)(3)(A) Examples: Refusal to permit a person who is mobility impaired to build a ramp to the main entrance. Refusal to permit a person to install studs and grab bars in the bathroom. Refusal to permit doors to be widened in order for a person in a wheelchair to move through the dwelling. Refusal to permit removal of cabinets under the sink in the kitchen so that a person in a wheelchair can reach the sink. Refusal to permit a person to build a ramp into a common laundry room or clubhouse. 41

42 CONDUCT PROHIBITED BY 42 U.S.C. 3604(F)(3)(A) The housing provider may condition modification upon the renter restoring the interior to the condition existing before modification, excepting reasonable wear and tear, but only if the modification affects subsequent tenants use. In general, the housing provider cannot require removal or restoration of modifications to common areas or dwelling exterior The housing provider may require the modification be in a workmanlike manner, with any required building permits obtained. In limited circumstances, housing provider can require that money be put in escrow for restoration 42

43 REASONABLE MODIFICATIONS: NEXUS As with accommodations, the requester must be prepared to show the link between the disability and the requested modification The landlord can request documentation if the disability or the need is not obvious 43

44 DISABILITY REFUSAL TO ALLOW A REASONABLE MODIFICATION Hollis v. Chestnut Bend Homeowners Association, 2014 U.S. App. LEXIS (6th Cir. 2014) Plaintiffs in this case have two children with disabilities. They asked the HOA for permission to build a sunroom onto their home that would serve as a medically-necessary play area for their children. The HOA denied the application because the proposed building materials were not consistent with the neighborhood appearance and because the applications did not include all required information. The trial court entered summary judgment in favor of Defendants since Plaintiffs did not show a discriminatory animus on the part of the HOA in its denial. A Sixth Circuit panel ruled that plaintiffs in reasonable modification or reasonable accommodation claims do not have to prove discriminatory intent when RM or RA requests are denied. The case was remanded to the trial court, which has since released an opinion against the defendants, clearing the case for trial.

45 DISABILITY REFUSAL TO ALLOW A REASONABLE MODIFICATION Scott v. Croom, Case No. No. 1:12-cv-1132 (D.N.M. 2013) Tenant developed multiple sclerosis and the need to use a wheelchair after living in a rental house for two years. Tenant asked the landlord if he could make modifications to the house at his expense to make the house accessible. Landlord refused the modifications and refused to renew the tenant s lease. The parties reached a settlement whereby the landlord agreed to pay the tenant $200,

46 REASONABLE MODIFICATION SCENARIO Scenario: Andrea recently had a car accident and now uses a wheelchair. The complex she lives in was built in 2003, and there is a small threshold into her front door that she cannot navigate in a chair. She has asked the owner to build her a small ramp allowing her access, but the owner refuses, saying I don t want to make this place look like a retirement home. Is the owner correct? A.Yes B. No

47 INQUIRY OF DISABILITY It is unlawful to - - Make inquiry to determine whether those protected under the Act have a disability Inquire as to the nature or severity of a disability 47

48 INQUIRY OF DISABILITY Inquiry may be made to determine- - Applicant s ability to meet requirements of ownership or tenancy Qualification for dwelling for persons with disabilities or a particular disability Eligibility for a preference for persons with disabilities Current illegal drug use Conviction of the illegal manufacture of a controlled substance 48

49 CONDUCT PROHIBITED BY 42 U.S.C. 3604(F)(3)(C) Discrimination includes: a failure to design and construct certain newer multifamily dwellings in such a manner that (i) the public use and common use portions of such dwellings are readily accessible to and usable by handicapped persons; (ii) all the doors designed to allow passage into and within all premises within such dwellings are sufficiently wide to allow passage by handicapped persons in wheelchairs; and (iii) all premises within such dwellings contain: (a) an accessible route into and through the dwelling; (b) light switches, electrical outlets, thermostats, and other environmental controls in accessible locations; (c) reinforcements in bathroom walls to allow later installation of grab bars; and (d) usable kitchens and bathrooms such that an individual in a wheelchair can maneuver about the space. 49

50 DISABILITY DESIGN & CONSTRUCTION United States v. The Bryan Company, No. 3:11-cv-302-CWRLRA (S.D.Miss. Feb. 24, 2014) The original owners and the developers of nine multifamily housing complexes in Mississippi, Louisiana, and Tennessee have agreed to retrofit the complexes to bring them into compliance with the accessibility requirements of the Fair Housing Act and the Americans with Disabilities Act. In May 2013, nine architects and engineers agreed to pay $865,000 into an accessibility fund to pay for the retrofits.

51 MORE GUIDANCE HUD s guidance on reasonable accommodations and modifications, design and construction, and assistance animals can be downloaded at

52 SAVE THE DATE! April 7, 2015 Fair Housing Matters Conference Embassy Suites Cool Springs Franklin, TN Check for details

53 RESOURCES Tennessee Fair Housing Council West Tennessee Legal Services